FATAL ACCIDENT: LEGAL COSTS OF ATTENDING INQUEST WERE RECOVERABLE: THE DANGERS TO DEFENDANTS OF MAKING AN EQUIVOCAL “ADMISSION”
In the judgment today in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce upheld a decision that the legal costs incurred in attending an inquest were recoverable as costs in a subsequent action for…
THE DIFFICULTY IN APPEALING A DENTON TYPE DECISION
The second issue in judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) was whether the appellant was able to appeal the District Judge’s refusal to grant relief…
UNSUCCESSFUL APPEAL “TO ESTABLISH THE LIBERTY OF INEBRIATED ENGLISH SUBJECTS TO BE ALLOWED TO LIE UNDISTURBED IN THEIR OWN VOMIT SOAKED CLOTHING”
In Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) Mr Justice Turner dismissed the claimant’s appeal. The claimant complained that police officers had removed her outer clothing and provided her with dry clothing at a time when…
JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY
In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on…
THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED
There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) will have in relation to food poisoning cases and more generally. That case related specifically to the treatment of…
WHEN SHOULD A LITIGATION FRIEND BE LIABLE FOR COSTS? INTERESTING COURT OF APPEAL DECISION
In Glover v Barker & Ors [2020] EWCA Civ 1112 the Court of Appeal overturned a decision where costs were awarded against a litigation friend. It is a particularly important judgment for those acting as litigation friends for defendants. THE…
LEXLAW -v- ZUBERI: PERMISSION TO APPEAL GRANTED
I wrote in July about the decision in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch) (10 July 2020) in relation to the validity of a damages based agreement. Practitioners may like to know that permission to appeal has been granted by…
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
PROVING THINGS 181: THE ART GALLERY, THE MILKMAN AND THE 1992 REGULATIONS…
It is rare for this blog to look at Scottish cases. However the judgment of the Sheriff Appeal Court in APPEAL BY ANDREW WRIGHT v NATIONAL GALLERIES OF SCOTLAND [2020] ScotSAC Civ 6 raises an issue that is common to…
PROVING THINGS 178: PROVING PREJUDICE: THE NEED FOR SPECIFIC EVIDENCE
There is another aspect of the Court of Appeal decision in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 that justifies closer examination. That is the court’s observations on the judge’s finding of prejudice. The Court of Appeal…
RELIEF FROM SANCTIONS ALLOWED WHEN JUDGE HAD RESERVATIONS AS TO WHETHER STRIKING OUT ORDER SHOULD EVER HAVE BEEN MADE
In Barakat v Greycourt Ltd [2020] EWHC 643 (Ch) Mr Justice Fancourt granted relief from sanctions to an appellant whose appeal had been struck out without notice. One thing of note in this judgment is the order striking out the…
HIGH COURT JUDGE OVERTURNS FINDING THAT THERE WAS NO FUNDAMENTAL DISHONESTY: CLAIMANT HAS TO PAY DEFENDANT’S COSTS
In Pegg v Webb & Anor [2020] EWHC 2095 (QB) tMr Justice Spencer overturned a finding of a trial judge that a claimant had not been fundamentally dishonest. The claimant had been dishonest in the failures to give full disclosure…
USING RTA PROTOCOL AND PART 8 PROCEDURE INAPPROPRIATELY DID NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
The Court of Appeal today gave judgment in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 and overturned the decision to strike out an action because it had been issued inappropriately using the portal and Part 8…
OPENING LINES OF JUDGMENTS: “DUMB, DUMB, DUMB”: “WE SHOULD AVOID DOING DUMB THINGS. ESPECIALLY ONES THAT ARE DUMB”
I often do an annual review of opening lines of judgments. This review has never had any jurisdictional limits. For that reason I am able to review the judgment yesterday of the United States Court of Appeals for the Ninth…
IN-HOUSE COSTS RECOVER ON ASSESSMENT: THE INDEMNITY PRINCIPLE IS NOT BREACHED
The question on the indemnity principle and in-house lawyers was another costs issue considered by Mostyn J in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin). The judge rejected an argument that the successful…
“MY LADY – THE MICROPHONE IS STILL ON”: THERE IS A LESSON HERE FOR US ALL …
The judgment of the Court of Appeal today in C (A Child) [2020] EWCA Civ 987 is an example of a problem that abounds in these days of remote and “hybrid” hearings. The Court allowed an appeal against a refusal…
CIVIL EVIDENCE AND THE BURDEN OF PROOF: WHEN WHO BEARS THE BURDEN CAN HAVE A MAJOR EFFECT ON THE OUTCOME OF A CASE
The judgment of Mr Justice Birss in Emmanuel v Avison & Ors [2020] EWHC 1696 (Ch) contains some interesting observations about the burden of proof. The burden lay with the claimant, despite the fact that if different proceedings had been…
CORONAVIRUS LAW: APPEAL ON POSSESSION ISSUES STAYED BY PD51Z: NO SALAMI SLICING OF CASES WHERE A LANDLORD IS SEEKING POSSESSION
In the judgment in TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd & Ors[2020] EWCA Civ 833 the Court of Appeal (by a majority) stayed a number of appeals, holding that they were possession proceedings…
COUNSEL’S ADVICE IS NOT EVIDENCE: REALLY, ITS NOT.
There is an interesting consideration of the role of counsel’s advice in the judgment of HHJ Vincent in AZ v BZ (financial remedies appeal) [2020] EWFC 28. In a financial remedies hearing, a judge was wrong to firstly admit, and…
LIFE EXPECTANCY IS RARELY A SIMPLE MATTER OF STATISTICS: APPLYING FOR A “VARIATION” OF DIRECTIONS: YOU SHOULD HAVE APPEALED
In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy. This judgment is important…
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
CORONAVIRUS LAW: POSSESSION APPEAL HEARD IN STAY PERIOD: JUDGMENT WILL NOT BE GIVEN UNTIL END OF THE STAY
The judgment of Mr Justice Cavanagh yesterday in Bromford Housing Association Ltd v Nightingale & Anor [2020] EWHC 1532 (QB) is another variant of the issues relating to the stay of possession proceedings. In this case the judge declined to…
CORONAVIRUS LAW: STAY LIFTED SOLELY FOR THE PURPOSE OF HANDING DOWN APPEAL JUDGMENT
In Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB) Mr Justice Freedman lifted the stay on possession proceedings for the purpose of handing down a judgment on appeal. THE CASE The action related to possession proceedings brought…
RELIEF FROM SANCTIONS SHOULD NOT HAVE BEEN GRANTED: CPR 3.9 PROPERLY APPLIED IS ARTICLE 6 COMPLIANT
The previous two posts on this blog have been warning against complacency in relation to the Denton principles. This is the third in that series. In Magee v Willmott [2020] EWHC 1378 (QB) Mrs Justice Yip allowed an appeal in…
ACCEPTING AN OFFER DURING A HEARING: CONTRACTUAL PRINCIPLES, NOT PART 36, APPLY: OFFER DID NOT LAPSE AT THE DOOR OF THE COURT
Offers of settlement can, and often are, made outside the ambit of Part 36. In MEF v St George’s Healthcare NHS Trust [2020] EWHC 1300 (QB) Mr Justice Morris considered issues relating to late acceptance of offers. The case shows…
EVALUATING EVIDENCE ON APPEAL: THE APPELLATE COURT WILL NOT READILY DISPLACE THE FINDINGS OF THE TRIAL JUDGE
I am grateful to Christopher Kardahji from Irwin Mitchell solicitors for sending me a copy of the judgment of Mr Justice Freedman in Lenord -v- First Manchester Limited [2020] EWHC 982 (QB). The judgment contains a detailed analysis of the…
AUTOMATIC STAY OF POSSESSION HEARINGS APPLIES TO APPEALS: COURT OF APPEAL DECISION THIS MORNING
In London Borough of Hackney -v- Okoro [2020] EWCA Civ 681 the Court of Appeal found that the automatic stay on possession proceedings also applies to appeals against possession orders. THE CASE The Court of Appeal were asked…
ALDRED -V- CHAM: PERMISSION TO APPEAL REFUSED BY THE SUPREME COURT
In November last year I reported on the case of Aldred -v- Cham [2019] EWCA Civ 1780, in relation to the recoverability of counsel’s fees in child approval cases. I am grateful to Matthew Hoe from Taylor Rose who informs me…
RELIEF FROM SANCTIONS GRANTED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: SUCCESSFUL APPEAL TO THE HIGH COURT
High Court decisions in relation to relief of sanctions seem to be coming in pairs. Yesterday we looked at Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 1237 (QB) today we are looking at the claimant’s successful appeal…
COVID REPEATS 26: YOU HAVE TO PROVE YOU HAVE SUFFERED DAMAGES: FOOTBALL CLUB PITCHES THEIR CASE TOO HIGHLY
The next few posts in this series are going to highlight those cases where parties simply failed to prove things at trial (and there are quite a few of these). Today we are looking at the Court of Appeal decision…
THE IMPORTANCE OF STATEMENTS OF CASE: THE TRIAL SHOULD NOT BECOME A “FREE FOR ALL”: COURT OF APPEAL SENDS OUT A WARNING
In Dhillon v Barclays Bank Plc & Anor [2020] EWCA Civ 619 the Court of Appeal reiterated the importance of statements of case in relation to civil litigation. The statements of case should define the issues at trial. “It…
MORE ON REMOTE HEARINGS: THE DANGERS OF INJUSTICE: COURT OF APPEAL DECISION (IT MAY BE DIFFICULT TO DO JUSTICE OVER THE TELEPHONE IN THE COURSE OF A OVER-BUSY LIST)
In B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 the Court of Appeal set out some of the dangers of remote hearings and the need to take considerable care when important decisions are being made. It is also…
REMOTE HEARINGS: CHILDREN CASES: GUIDANCE FROM THE COURT OF APPEAL
Civil litigators may well be able to gain some assistance from the guidance being given in children cases. The Court of Appeal gave judgment today in Re A (Children) (Remote Hearing: Care and Placement Orders). a-children-judgment-300420 [2020] EWCA Civ 583…
SKYPE HEARINGS AND APPEALS: COURT OF APPEAL ARE STEPPING ON THE GAS…
Teesside Gas Transportation Ltd v Cats North Sea Ltd & Ors [2020] EWCA Civ 503 demonstrated that Court of Appeal hearings can take place remotely. “I have explained how this hearing was undertaken in an attempt to demonstrate the…
DIVISIONAL COURT FINDS THAT EXPERT IN CONTEMPT OF COURT SHOULD HAVE BEEN ERASED FROM MEDICAL REGISTER: “NEW” EVIDENCE ADMITTED
The judgment of the Divisional Court today in General Medical Council & Ors v Zafar [2020] EWHC 846 (Admin) provides an interesting sequel to the earlier judgments in relation to contempt of court by a doctor who had been seriously…
COURT OF APPEAL HEAR CASE BY VIDEOCONFERENCING
Fairly soon, I am sure, the holding of hearings remotely will become such a commonplace that they will pass without comment. In the interim, however, it is worthwhile noting that the Court of Appeal heard an appeal on the 26th…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT: THE STANDARD OF PROOF FOR DISHONESTY: ALSO DELAY OF 22 MONTHS IN GIVING JUDGMENT UNACCEPTABLE
In Bank St Petersburg PJSC & Anor v Arkhangelsky & Anor [2020] EWCA Civ 408 the Court of Appeal ordered a retrial because of doubts in relation to the trial judge’s findings of fact. The judge had applied too high…
“STATEMENTS OF CASE PLAY A CRITICAL ROLE IN CIVIL LITIGATION WHICH SHOULD NOT BE DIMINISHED”: THE COURT OF APPEAL AND THE LEARNING ACADEMY
In November 2018 I wrote about the decision of HHJ Klein in UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). An appeal from that judgment has been heard, and dismissed, by the Court of Appeal. …
TRIAL JUDGE SHOULD HAVE FOUND THAT THE CLAIMANT HAD BEEN FLUSHED OUT AND WAS FUNDAMENTALLY DISHONEST: HIGH COURT ALLOWS APPEAL
In Roberts v Kesson & Anor [2020] EWHC 521 (QB) Mr Justice Jay allowed a defendant’s appeal and held that the trial judge should have found the claimant to be fundamentally dishonest. The fact that the claimant had been “flushed…
OUT OF TIME APPEAL ALLOWED BECAUSE OF ITS UNDERLYING MERITS: DENTON CONSIDERED
For the second time in two days I am writing about a relief from sanctions case where the court took into account the merits of the underlying case. Yesterday relief was refused because the court held that the case had…
SERVING PROCEEDINGS: COURT OF APPEAL REFUSE GOOSE’S APPEAL : THE DANGERS OF OVERLOOKING THE BASIC OBLIGATION TO SERVE
In Canada Goose UK Retail Ltd & Anor v Unknown Persons [2020] EWCA Civ 303 the Court of Appeal upheld the judge’s decision not to grant the claimant any kind of relief due to a failure to properly serve the…
IF THE CAP DON’T FIT A JUDGE DOESN’T HAVE TO ACQUIT: THE ARKIN CAP IN THE COURT OF APPEAL
In the judgment today in Chapelgate Credit Opportunity Master Fund Ltd v Money & Ors [2020] EWCA Civ 24 the Court of Appeal upheld a decision not to apply the “Arkin cap” to a party that had been funding litigation. …
JUDGE WAS CORRECT TO STRIKE OUT ACTION AGAINST NON-EXISTENT COMPANY: ALSO GUIDANCE FOR INSURERS ON MOST PRUDENT COURSE OF ACTION
In the judgment in Cowley v LW Carlisle & Company Ltd [2020] EWCA Civ 227 today the Court of Appeal dismissed the claimant’s appeal against an order striking out his claim against one defendant. At the time the striking out…
STRIKING OUT POINTS OF DISPUTE BECAUSE OF LACK OF PARTICULARISATION: PARTIES HAVE TO KNOW WHAT IS IN DISPUTE AND WHY
In Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 the Court of Appeal upheld a decision striking out part of points of dispute. “Common sense dictates that the points of dispute must be drafted in a way which enables…
NO PROTECTIVE COSTS ORDER FOR APPELLANT IN ACCOMMODATION APPEAL: COURT OF APPEAL DECISION TODAY
In the judgment in Swift v Carpenter [2020] EWCA Civ 165 today the Court of Appeal rejected the claimant’s application for a Protected Costs Order. There are important observations on (i) the scope of Protected Costs Orders; (ii) the exercise…
PLEADINGS ARE IMPORTANT: NO LUCK IN TRYING TO ARGUE AN UNPLEADED CASE ON APPEAL: NOT A “DRY, TECHNICAL POINT”
In Kalma & Ors v African Minerals Ltd & Ors [2020] EWCA Civ 144 the Court of Appeal dismissed an appeal brought by unsuccessful claimants. In the judgment it was observed that the claimants were attempting to run a case…
THE DANGERS OF MAKING ORDERS FOR SPLIT TRIALS: DECISION AT TRIAL SET ASIDE DUE TO A SERIOUS PROCEDURAL IRREGULARITY
The judgment of Mr Justice Murray today in Sharn Panesar Ltd v Pistachios In The Park Ltd & Anor [2020] EWHC 194 (QB) illustrates some of the dangers of holding a trial on a preliminary issue. In this case a…
INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT’S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE…
The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 is the second time this case, about a garden, has been on appeal. On this occasion the Court of Appeal held that the claimants’ conduct…
PROVING THINGS 172: SPECULATION BY THE DEFENDANT IS NOT EVIDENCE: A CLINICAL NEGLIGENCE CASE
The judgment of Mr Justice Turner in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) is another illustration of a party asserting something but having no evidence to support it. This time it was a defendant whose…
JUDGMENT MUST GIVE REASONS (AND NOT SIMPLY INCORPORATE A SKELETON ARGUMENT): THE BAKERS CAN CHALLENGE THEIR ELECTRICITY BILL
In Fine Lady Bakeries Ltd v EDF Energy Customers Ltd & Anor [2020] EWHC 87 (QB) Mrs Justice Farbey allowed an appeal against a Deputy District Judge who had granted summary judgment. The case emphasises the need for a judge…
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